DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued examination under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e) was filed after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.114 has been timely paid, the finality of the previous Office Action has been withdrawn pursuant to 37 CFR 1.114. Applicant’s submission filed on 02/06/2026 has been entered.
Claim status
The examiner acknowledges the amendment made to the claims on 02/06/2026.
Claims 1-6 are pending in the application. Claim 1 is currently amended. Claims 2-4 are previously presented. Claims 5-6 are newly presented. Claims 1-6 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
Claim Objections
Claims 5-6 are objected to because of the following informalities: “a group” should read “the group”. Appropriate correction is required.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Shirotani JP2015065949 (cited in the IDS submitted on 09/01/2023, English translation relied upon for reference, hereinafter referred to as Shirotani) in view of Bot US Patent Application Publication No. 2005/0069619 A1 (hereinafter referred to as Bot).
Regarding claims 1 and 4-6, Shirotani teaches a vegetable molded cheese-like food product (0001; 0034) which is an oil-in-water emulsion (0038) comprising, inter alia, oils/fats (e.g., a triglyceride composition, 0026) of 10 to 50 wt% or preferably 20-40 wt% (0027), starch (0014; 0022), and a vegetable protein (e.g., soy protein, 0014; 0017), wherein SFC of the oils and fats is 15% or more or preferably 25% (or 30%) or more at 20°C (0025), and wherein the vegetable molded cheese-like food has a hardness according to a rheometer measurement value at 5°C of the oil-in-water emulsion is 500-2000 g/19.6mm2 (5 mm diameter circular plunger, table speed 50mm/min) or more (0033). Note that Shirotani teaches that the soy protein can contain no or trace amount of fat (0019), thus the oils and fats of the cheese-like food product can be totally from the triglyceride composition that has an SFC of 15% (or 25%, or 30%) or more at 20°C.
The amounts of oils and fats, the SFC and the hardness value as disclosed by Shirotani encompass the ranges as recited in claims 1 and 4-5. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Shirotani is silent regarding that the saturated fatty acid content of the oils and fats is less than 40% as recited in claim 1, or that the oil or fat is mixed oils and fats of at least two selected from the group consisting of rapeseed oil, coconut oil, palm oil, etc.
Bot discloses a cheese-like food product (e.g., a spreadable food product that resembles cheese, [0001; 0003]) which is an oil-in-water emulsion ([0011; 0075]) comprising starch ([0011; 0033]); protein such as soy protein ([0001; 0037]; oils/ fats selected from the group consisting of palm oil, coconut oil, palm kernel oil, soybean oil, rapeseed oil, sunflower oil and combination thereof ([0011; 0045-0046]). Bot teaches that the oils/ fats contain less than 45% or preferably less than about 30% saturated fatty acid ([0047]), and that the SFC content of the oils/fats is 1-50% or preferably 7.5-35% or 10-35% at 20°C ([0043]). Additionally, Bot teaches that the cheese-like food contains 5-40% or preferably 15-35% or 20-35% oils/fats ([0040]).
Both Shirotani and Bot are directed to cheese-like foods that comprise oils/fats, soy protein, and starch, and the amount of oils/fats for the cheese-like food in both are matched (e.g., Shirotani teaches 20-40% oils/fats and Bot teaches 20-35% oils/fats). Further, where Shirotani requires that the SFC of the oils/fats in the cheese-like food needs to be 15% or more or preferably 25% (or 30%) or more at 20°C, Bot teaches that oils/fats selected from the group consisting of palm oil, coconut oil, palm kernel oil, soybean oil, rapeseed oil and combination thereof have a SFC content of 1-50% (or preferably 7.5-35% or 10-35%) at 20°C. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Shirotani by substituting the oils/fats as disclosed by Bot for the oils/fat of Shirotani with reasonable expectation of success, for the reason that Bot has established that oils/fats such as palm oil, coconut oil, palm kernel oil, soybean oil, rapeseed oil, sunflower oil and combination thereof is the suitable fat source for a cheese-like food that comprises soy protein and starch, and the SFC content of such oils/fats meets the amount of 15%, 25%, or 30% or more as required by Shirotani.
The amount of saturated fatty acid in the oils/fats and the SFC content as disclosed by Bot meets the range as recited in claims 1 and 5. Further, given that Shirotani teaches that the cheese-like food contains 20-40 wt% oils/fats, and Shirotani as modified by Bot teaches that the oils/fats contains less than 30% saturated fatty acid, cited arts in combination meet the amount of saturated fatty acid by weight of the emulsion as recited in claims 1 and 5 (for example, if the cheese-like food contains 20% oils/fats, and the oils/fats contains 30% saturated fatty acid, then the amount of saturated fatty acid by weight of the cheese-like food or the emulsion is 20% x 30% =6%). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Regarding claim 2, Shirotani teaches cutting the molded cheese-like food product into slice or shred shape (0014).
Regarding claim 3, Shirotani as recited above teaches a cheese-like food product comprising vegetable oil (e.g., palm oil), starch of vegetable nature (0022), and a vegetable protein (e.g., soy protein). Further Shirotani as modified by Bot will introduce vegetable oil.
Further, Shirotani teaches that the cheese-like food product comprises water (0014). Although Shirotani does not specify whether the water is “vegetable”, a water is a water and one would not be able to tell if a water is derived from vegetable matter or non-vegetable matter.
Further, Shirotani teaches that the cheese-like food product comprises other materials such as an emulsifier, a pH adjuster, a flavoring, etc. (0031-0032). However, Shirotani teaches that those other materials are optional items for the cheese-like food product.
Therefore, it is submitted that Shirotani as modified by Bot reads on claim 3 limitation that the cheese-like food product comprises only vegetable raw materials.
Response to Arguments
Applicant's arguments file on 02/06/2026 have been fully considered and the examiner is response is shown below:
Applicant argues on pages 4-5 of the Remarks that the Table 2 along with Table 3 of the instant specification has shown that the combination of 1) less than 40% saturated fatty acid in the oils and fats, 2) 5.7-38% SFC, and 3) 2.5-10% saturated fatty acid in the emulsion will make is possible to obtain a cheese-like food that has a hardness of more than 400 g/19.6 mm2.
The argument is considered. However, it is moot over the new ground of rejection over Shirotani in view of Bot as set forth in the instant office action, which teaches all the above features. Further, it is not immediately clear if applicant is asserting a criticality for 5.7-38% SFC. If that is the case, the examiner submits that applicant has not shown that a control that has a SFC content being outside of the claimed range but otherwise having the same composition as the inventive cheese-like food is inferior in meltability. Further, Examples 1-6 of Table 2 have three SFC contents (e.g., 38%, 20%, and 5.7%) which can hardly enable the whole range of 5.7-38%, for the reason that applicant has not shown a sufficient amount of SFC within the range. See MPEP 716.02(d) II, which states that to establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). See also MPEP 716.02(d) I. Nonobviousness of a genus or claimed range may be supported by data showing unexpected results of a species or narrower range under certain circumstance. The nonobviousness of a broader claimed range can be supported by evidence based on unexpected results from testing a narrower range if one of ordinary skill in the art would be able to determine a trend in the exemplified data which would allow the artisan to reasonably extend the probative value thereof. In re Kollman, 595 F.2d 48, 201 USPQ 193 (CCPA 1979).
Additionally, the examiner notes that Examples 4-6 in Table 2 is not commensurate in scope with instant claim 6, which recites a hardness of at least 600 g/19.6 mm2.
Applicant argues on page 6 of the Remarks that nowhere in Shirotani teaches or suggests an objective to reduce the intake of saturated fatty acid.
The argument is considered. However, at least in examining a claim that is drawn to a composition, the Office applies a reference based primarily on what components the references teaches, not on what the reference is aiming for. In other words, if prior art arrives at the composition as claimed but for a different purpose than the claimed invention, that prior art is still considered to meet the composition as claimed, since the objective is merely the intended use of the composition. Further, the examiner notes that instant claims do not recite an objective of reducing the intake of saturated fatty acid.
In addressing the examiner’s reasoning that a cheese-like food with higher amount of solid fat is expected to have worse meltability than one having lower amount solid fat, applicant argues on page 6 of the Remarks that Table and 3 of the instant specification has shown that comparative Example 3, although having a lower SFC, has inferior melting property to Example 1-6.
The argument is considered. However, it is noted that the examiner’s reasoning is for addressing the applicant’s assertion that a SFC content of 20-40% is critical. Given that applicant does not appear to assert a criticality for 20-40% SFC, the argument is moot. Further, the examiner notes that Table 2 has actually shows that a sample having a SFC of 5.7% (e.g., Example 5) is actually as good in meltability as one having 20% SFC (e.g., Example 4).
Conclusion
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/CHANGQING LI/Primary Examiner, Art Unit 1791